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Privatized Torture

By Andrew Rosenthal May 14, 2012 12:35 pmMay 14, 2012 12:35 pm

On Friday, a federal appellate court ruled that private military contractors allegedly complicit in torture at Abu Ghraib aren’t immune from prosecution. In post 9/11 America, that counts as a significant victory for the rule of law.

As everyone knows, soldiers and civilian contractors at the Abu Ghraib prison committed criminal offenses, with military officials going so far as to hide prisoners from the Red Cross. In 2004, an independent panel of civilian defense experts found that Pentagon leaders helped create the conditions that led to the scandal. “The abuses were not just the failure of some individuals to follow known standards, and they are more than the failure of a few leaders to enforce proper discipline,” the report said. “There is both institutional and personal responsibility at higher levels.”
Despite these findings, only low-ranking soldiers were sent to prison, including Lynndie England (she of dog-leash infamy) and her co-conspirator Charles Graner. That was it. Higher-level officials either got away scot-free, or with a reprimand.

Over the last several years, two private military contractors linked to prisoner abuse at Abu Ghraib have been pleading for the same treatment afforded to Pentagon execs. CACI and L-3 have asserted that their wartime activities are beyond the review of courts and have claimed “absolute official immunity” from litigation. But on Friday, the Court of Appeals for the Fourth Circuit ruled 11-3 that lawsuits against CACI and L-3 can proceed to a discovery phase.

Hawks may spin the Fourth Circuit’s decision as a victory for bleeding heart liberals. But really this is about preserving the most traditional legal principle there is: that criminals should answer for their crimes. In December, a group of retired military officers filed an amicus brief expressing concern that “persons engaging in shocking behavior that the U.S. military does not itself tolerate for its own members have broad impunity from accountability.”

The alleged behavior, it’s worth remembering, really was “shocking,” as the retired military officers put it. The plaintiffs claim they were deprived of oxygen, food and water, and were subjected to electric shocks. They say the corporate defendants, who were hired to provide “interrogation services,” are guilty of rape and other forms of sexual assault. And here’s the kicker: The plaintiffs were released from detention without charge.

Baher Azmy, legal director of the Center for Constitutional Rights, who helped argue the case on behalf of Abu Ghraib detainees, said it was finally “an opportunity for victims of torture at Abu Ghraib to tell their stories to an American court.” It might also shed some light on the Bush administration’s practice of outsourcing warfare in Iraq and Afghanistan to independent contractors.